Bridges v. Brennan, 2003 BCSC 456

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bridges v. Brennan 2003 BCSC 456 Date: 20030326 Docket: 11555 Registry: Cranbrook Between: Lee Bridges Plaintiff And Janet Brennan Defendant Before: The Honourable Mr. Justice Melnick Reasons for Judgment Counsel for the Plaintiff: R. Buddenhagen Counsel for the Defendant: G.L. Harrison, Q.C. Date and Place of Trial: March 11 - 14, 2003 March 17, 18, 2003 Cranbrook, B.C. [ 1 ] On June 21, 1999, a motor vehicle driven by Janet Brennan ("Ms. Brennan") struck the rear of a motor vehicle owned and driven by Lee Bridges ("Mr. Bridges"). Mr.

Bridges claims that, as a result, he suffered a back injury and consequent damages. While admitting liability, Ms. Brennan denies that Mr. Bridges suffered any injury in the accident or, alternatively, says that he suffered only a minor aggravation to a pre-existing back injury. I. BACKGROUND [ 2 ] Mr. Bridges is a 65 year old guide-outfitter. For many years he and his wife, Sharon Bridges ("Ms. Bridges"), have operated a business guiding hunters in a territory over which he holds licences south of Kalispell, Montana.

He promotes his business, Mountain Trails Outfitters, by attending hunting and sport shows throughout the United States and putting on displays of trophy mule deer as well

as hunting and wildlife seminars. He charges a fee for the shows. He also earns income by taking wildlife photographs and writing articles concerning wildlife and hunting and selling them to magazines. [ 3 ] Mr. and Ms. Bridges immigrated to Canada in 1988. However, he has always maintained a post office box address in Eureka, Montana for his guiding business and, in 1992, Mr. and Ms. Bridges purchased a home in Rexford, Montana, approximately 10 miles from Eureka.

He files income tax returns in the United States and the State of Montana as a resident but also declares himself as a resident of Canada for income tax purposes here. He insures his home in Rexford as his primary residence although he maintains that he is a resident of British Columbia. [ 4 ] For many years, Mr. Bridges has promoted his guiding business as a one-on-one hunter-guide experience in the high country of Montana accessed by horseback. Mr. Bridges was in need of a horse in November 1998, and tried out one that had been said to be a gentle animal that could be ridden by inexperienced riders.

The horse bucked him off before he was fully in the saddle. He landed on his back on a log, fracturing his spine through the upper anterior aspect of the L2 vertebra. He was hospitalized for two days in the Fernie District Hospital. At that time, it was noted that he had degenerative spurring at the L1-2 and L2-3 vertebrae. After initially being treated with demerol because of significant pain, he was discharged within two days, able to walk short distances with the assistance of a walker. This injury was treated with physiotherapy and swim therapy as well as pain medication. [ 5 ] The clinical records of Dr.

Ronald Clark ("Dr. Clark"), Mr. Bridge's family physician in Fernie, noted a discussion concerning his back on February 4, 1999. A visit to Dr. Clark on May 6, 1999 was concerned with other medical problems but on May 21, 1999, he reported to Dr. Clark that his back was still very sore with problems secondary to an old compression fracture [from the horse accident] but okay with rest. Dr. Clark then noted that Mr. Bridges' back pain increased with use and that he took up to 12 Advil a day for this. [ 6 ] One month later, on June 21, 1999, Mr. Bridges was involved in this motor vehicle accident.

He was driving a 1987 Ford Bronco and had come to a stop at a stop light on Cranbrook Street in Cranbrook. He was wearing a seatbelt. His vehicle was struck from the rear by a 1989 Dodge Colt driven by Ms. Brennan. She was also wearing a seatbelt. On that much the parties do not disagree. However, their descriptions of the dynamics of the collision differ markedly. [ 7 ] Mr. Bridges said that, upon impact, his vehicle was propelled forward six to eight feet "like it was shot out of a cannon".

He said that his vehicle was pushed forward to within inches of a vehicle ahead of him. [ 8 ] He described himself getting out of his vehicle "sort of stunned". He said that he walked back to Ms. Brennan's vehicle and stated "that sure didn't do my back any good". He said he did not immediately observe any damage to his own vehicle although, two or three days later, he observed his bumper to be bent in so that there was no room for the hitch of his trailer to go over the ball. He described the hood to Ms. Brennan's vehicle as being "banged up". In cross-examination, he described the hood of Ms.

Brennan's car as "all bent up". [ 9 ] Ms. Brennan stated that she observed traffic to be slowing, was braking, but she did not stop before bumping into the trailer hitch of Mr. Bridges' vehicle. She described the force of the impact as very minor, so much so that certain paper work and makeup which she had on the front passenger's seat did not come off the seat on impact. She described her shoulders going forward and back in her seat although her seatbelt did not lock. She was not injured or dazed in the accident. [ 10 ] It was her recollection that Mr.

Bridges said that he was fine but noted that he had broken his back the year before. [ 11 ] She said that as a result of the impact there was a minor mark on her bumper around the area of her licence plate. She did not repair it as the damage was less than her deductible of $250 or $300. [ 12 ] Ms. Brennan's insurer accepted Mr. Bridges' report that his rear bumper had been bent as a consequence of the impact and it was repaired at a cost of between $500 and $600. [ 13 ] It is Mr.

Bridges' evidence that, at the time of the motor vehicle accident, his back had healed to the extent of 95% from the injury he had suffered when he had been bucked from the horse. He explained that his report of his back being sore and his need to take medication for back pain on May 21, 1999 as an aberration brought on because he had, at that time, become stuck in a snow drift and had to chain up all four wheels of his vehicle and shovel out of a snow drift. He insisted, however, that at the time of the motor vehicle accident he was virtually pain free. [ 14 ] Mr. Bridges saw Dr.

Clark on the day of the accident. Dr. Clark again prescribed physiotherapy and swim therapy. In July of 1999, Mr. Bridges reported to Dr. Clark that his back was still sore but slowly improving and that there was some improvement in September of that year, but overall, his pattern of reporting to Dr. Clark through to December 2002 was of continued pain in his back, particularly with lifting and sitting for prolonged periods of time or moderate to heavy lifting, with a range of motion of 50% of normal. [ 15 ] Dr. Alex Chan ("Dr. Chan"), an orthopaedic surgeon who saw Mr.

Bridges on June 9, 2000 on referral from Dr. Clark, accepted Mr. Bridges' statement that, at the time of the motor vehicle accident, he had achieved approximately 95% recovery. X-rays reviewed by Dr. Chan confirmed an anterior compression fracture of the L2 vertebra. He noted significant L1-2 disc space narrowing. [ 16 ] He noted that "with this particular finding" Mr. Bridges would have ongoing back discomfort to his upper lumbar spine which would be chronic in nature. It was Dr. Chan's view that Mr.

Bridges' options were limited to ongoing conservative treatment with anti- inflammatory and pain medications and the use of a back brace. He noted that a lumbar spine fusion might become necessary in the future if Mr. Bridges' pain became intolerable. Mr. Bridges does use two types of braces, one of which is a lace-up corset type brace for when he is doing heavy lifting. [ 17 ] Mr. Bridges was seen by Dr. Paul Bishop ("Dr. Bishop"), the director of the back pain clinic at Vancouver Hospital, on December 3, 2002 at the request of his counsel. In his report dated December 3, 2002, Dr. Bishop traced Mr.

Bridges' medical records and x-rays subsequent to the horse accident and the motor vehicle accident. He observed that, on examination, Mr. Bridges "...did not show any pain or tenderness over the region of his compression fracture". He noted that Mr. Bridges' symptoms were now lower down in the

lumbar spine. He noted no evidence of any spinal nerve root irritation. [ 18 ] Dr. Bishop recommended that Mr. Bridges have a bone scan of his lumbar spine to determine whether there was any underlying inflammatory condition that was contributing to his current symptoms. That does not appear to have been done. He said that, with the benefit of a bone scan, he would be able to comment more accurately on future treatment recommendations, any functional limitations, and Mr. Bridges’ long-term prognosis.

Other than that, he gave no guidance on those issues in his report. [ 19 ] The defence provided a medical report dated February 3, 2003 by Dr. Frank Hainsworth ("Dr. Hainsworth"), an orthopaedic surgeon. A statement of Dr. Hainsworth's qualifications was not provided with this report, which was prepared with the assistance of reviewing various other reports and medical records, but without the benefit of examining Mr. Bridges. I am not prepared to rely on it. [ 20 ] Mr.

Bridges maintains that, since the motor vehicle accident, the back pain he experiences makes it effectively impossible for him to ride a horse and he is thus unable to take clients into the high country of his hunting territory. Therefore, he says, he is not able to provide his clients with a "Lee Bridges hunt". This has resulted, he maintains, in substantially decreased business and the devaluation of his hunting territory as a saleable commodity.

Although he intends to retire and thus does not seek loss of income in the future, he alleges that he has lost income because he has been unable to travel to hunting shows in order to book hunts, to hunt in the high country, or to function generally as a hunting guide and wildlife photographer. Further, he states, he can no longer hunt and fish for pleasure, a significant part of the reason why he moved to British Columbia from Montana in the first place. His inability to work has meant that he has had to use savings that were earmarked for retirement. He has also had expenses for physiotherapy and swim therapy.

II. DISCUSSION 1. The Motor Vehicle Accident [ 21 ] Dr. Chan stated in cross-examination that it does not take a serious motor vehicle accident to hurt a back. This motor vehicle accident certainly was not serious. In that regard, where the evidence of Ms. Brennan and Mr. Bridges differs, I accept the evidence of Ms. Brennan that the force of the impact was very minor and that the damage to Ms. Brennan's vehicle described by Mr. Bridges did not occur. The impact was so slight that, as noted above, items that she had placed on her passenger's seat did not even come off the seat. [ 22 ] Notwithstanding that Ms.

Brennan's insurer paid for the repair of Mr. Bridges' rear bumper, I note that rubber bumper strips were already missing from the bumper at the time of the accident and it is more probable that the bumper had already suffered damage from prior use. I very much doubt that even the small amount of damage shown in photographs of the bumper put into evidence occurred in this accident (at least to the extent illustrated). 2. Injury [ 23 ] The central premise to Mr.

Bridges' claim that since the motor vehicle accident he has suffered, and in the future will continue to suffer, chronic persistent pain is that, at the time of the motor vehicle accident, he had recovered 95% from the fracture of his spine that had occurred just over seven months earlier. I do not accept that premise. The only source of that evidence is, essentially, Mr. Bridges himself. There is no independent medical evidence to substantiate it. An opinion of Dr. Clark to that effect was not put into evidence. However, even if it had been, I would not have come to a different conclusion. Dr.

Clark's clinical notes make it clear that, only one month prior to the accident, Mr. Bridges was still experiencing a very sore back for which he took up to 12 Advil a day. The medical evidence before me was that this was a very substantial dose of this pain killer. [ 24 ] I accept that Mr. Bridges suffered some exacerbation of his fractured spine in the motor vehicle accident. However, that exacerbation was very slight. I have no doubt that, even without the intervention of the motor vehicle accident, the back problems Mr.

Bridges suffers from, and will continue to experience, are the result of the original compression fracture in the accident with the horse, the aging process resulting in degenerative changes to the spine and, perhaps, even inappropriate physiotherapy treatment. In that regard I note that Dr. Bishop stated in his report that "the content of the physiotherapy treatment that he has is not consistent with Clinical Practice Guidelines for the management of this type of back pain. I therefore doubt that it will provide the patient with any long-term benefit". [ 25 ] Thus, this not a case such as in Athey v.

Leonati (1996), 1996 CanLII 183 (SCC) , 140 D.L.R. (4th) 235. I do not accept that whatever injury Mr. Bridges suffered in the motor vehicle accident materially contributed to his ongoing, and now chronic, back problems other than for a period of months following the motor vehicle accident. [ 26 ] I add this: in March of 1999, Mr. Bridges entered into a contract with a Mr. Kenneth Olson to provide him with a six-day hunt commencing approximately October 23 of that year. A week or two prior to Mr. Olson's arrival, Mr. Bridges sought to dissuade Mr. Olson from hunting from a camp accessed by horseback. However, Mr.

Olson was quite insistent on that aspect of their arrangements. Thus, on October 22, 1999, Mr. Bridges took two pack horses into a camp. He says that one of the horses injured itself on the trip so that he had to shoot it. Not being allowed by the Forest Service to bury the horse on site, he used two winches in an unsuccessful attempt to winch the body of the horse into the back of his pickup truck. He apparently bent both winches in his attempt to load the horse.

He was later assisted by a passer-by. [ 27 ] Undoubtedly, the attempt to load the horse into the truck would have required a substantial effort on the part of Mr. Bridges. Although horses were subsequently not used on the hunting trip with Mr. Olson, Mr. Bridges did hike with him on back roads and game trails for four of the next six days. I accept that the experience was probably painful for Mr. Bridges. However, that was not surprising given what occurred with his attempt to load the horse into his truck. It is also not surprising given that he had fractured his spine less than a year before. III. DAMAGES 1.

Non-pecuniary

[ 28 ] Mr. Buddenhagen, for Mr. Bridges, suggested non-pecuniary damages in the range of $45,000 to $55,000. Mr. Harrison, for Ms. Brennan, agreed that, if the motor vehicle accident was a materially contributing cause to Mr. Bridges' present condition, damages in that range would be appropriate. However, he suggested that the effect of this accident on Mr. Bridges was very minor, which should result in either no damages or, alternatively, very minor damages. Given that I have concluded that the overall contribution of this accident to Mr.

Bridges' pain and suffering was, in fact, very minor, I award damages accordingly. I assess the monetary value of the short term effect of the very minor injuries suffered by Mr. Bridges in this accident at $5,000. 2. Cost of Future Care [ 29 ] Mr. Bridges has advanced a claim for the cost of his future care because of ongoing chronic back problems. I conclude, however, that Ms. Brennan should bear no responsibility for his future care as the effects of this accident have not contributed to his ongoing chronic condition. 3.

Loss of Income [ 30 ] In my view, the minor injuries sustained in this accident had no effect on Mr. Bridges' capacity to earn income after the accident. If his capacity to earn income was affected, or if he lost income as a consequence of ongoing back pain, it was not as a consequence of the injuries received in this accident. 4. Loss of Value of Guiding Territory [ 31 ] For the same reason, I reject the suggestion that the injuries received in this accident have had any bearing whatsoever on any diminution there has been in the market value of Mr. Bridges' hunting territory in the past few years.

In any event, the evidence put forward in this case falls far short of establishing that there has been any such diminution in value or, indeed, what value the hunting territory has if any. 5. Special Damages [ 32 ] Mr. Bridges has advanced a claim for $782 for special damages, largely relating to swim therapy treatments, a back brace and pain medications. Although I regard such claims as marginal as they relate to the severity of the injuries suffered in this accident, I am prepared to allow $15 for prescription drugs purchased during July, 1999 and $97 for swim therapy through to the end of September 1999.

I do not regard the purchase of a back brace as having been made necessary by the injuries received in this accident. [ 33 ] Special damages therefore total $112. Mr. Bridges will also be entitled to court order interest on that amount from September 30, 1999 to date of judgment. IV. COSTS [ 34 ] Counsel may address the issue of costs either at a time to be arranged or in written submissions. “T.J. Melnick, J.” The Honourable Mr. Justice T.J. Melnick